Com. v. Selenski, H.
228 A.3d 8
Pa. Super. Ct.2020Background
- Jan. 27, 2003 home invasion of jeweler Samuel Goosay: two masked men bound and threatened him; Goosay later saw one assailant’s face and identified Hugo Selenski at trial. Evidence recovered included flex cuffs, duct tape, ski masks, a BB gun, and New Balance sneakers whose tread could match prints at the scene.
- Police later found two buried bodies behind Selenski’s Luzerne County home; victims had been bound with flex cuffs and duct tape; flex cuffs from Selenski’s property matched those used on Goosay.
- At trial Selenski sought to present an expert on eyewitness identification but the trial court excluded it under then-existing law; a jury convicted him and he received an aggregate 32½–65 year sentence.
- After the Pennsylvania Supreme Court’s Walker decision permitting eyewitness-identification experts, Selenski obtained appellate remands and sought to introduce Dr. Dysart’s testimony but the trial court again excluded it; Selenski’s appeals were unsuccessful.
- Selenski filed a first PCRA petition alleging (inter alia) ineffective assistance of trial counsel (failure to call Weakley, a DNA expert, smoking witnesses, and to challenge phone records) and Brady violations (undisclosed hair DNA from Weakley’s car and misdescribed girlfriend’s vehicle). The PCRA court held an evidentiary hearing (trial counsel testified) and denied relief; this appeal followed.
Issues
| Issue | Selenski's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Failure to call co‑conspirator Paul Weakley | Weakley would have testified about other participants ("Nick and Steve") and implicated Weakley more than Selenski | No showing Weakley would have been willing to testify; Weakley identified Selenski at prior proceedings | Denied — no proof Weakley was willing to testify; no reasonable probability of different outcome |
| Failure to call DNA expert | DNA from struggle excluded Selenski; an expert would have emphasized lack of DNA linking Selenski | No identified or available expert shown; trial counsel elicited DNA exclusion on cross already | Denied — petitioner failed to identify an available willing expert; counsel had reasonable tactical basis |
| Failure to call witnesses re: smoking | Selenski is a non‑smoker; witnesses would have impeached Goosay’s report that assailant smoked, undermining ID | Trial counsel did call family witnesses who denied Selenski smoked; additional testimony would be cumulative | Denied — testimony would have been cumulative; no prejudice shown |
| Failure to challenge Weakley phone records | Phone calls from Weakley to Selenski’s numbers on night of robbery raised unanswered questions counsel should have pursued | Record and briefing undeveloped; claim inadequately argued | Waived — undeveloped argument fails appellate review |
| Brady: undisclosed hair DNA in Weakley’s trunk | Hair in Weakley’s car matched hair at Goosay scene and excluded Selenski; nondisclosure was material | No proof Commonwealth suppressed evidence; hair would not likely change verdict in context of ID and other evidence | Denied — petitioner failed to prove suppression or materiality |
| Brady: misidentified vehicle (SUV vs. sedan) | Commonwealth misdescribed ex‑girlfriend’s car; nondisclosure impeaching | Information was readily discoverable by Selenski; not withheld by prosecution | Denied — petitioner could have learned vehicle type with reasonable diligence |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes federal ineffective‑assistance standard)
- Commonwealth v. Walker, 625 Pa. 450, 92 A.3d 766 (Pa. 2014) (permitted expert testimony on eyewitness identification)
- Commonwealth v. Sneed, 616 Pa. 1, 45 A.3d 1096 (2012) (requirements for proving prejudice from failure to call a witness)
- Commonwealth v. Williams, 636 Pa. 105, 141 A.3d 440 (2016) (petitioner must show how uncalled witnesses would have been helpful)
- Commonwealth v. Spotz, 624 Pa. 4, 84 A.3d 294 (2014) (prejudice standard under Strickland)
- Commonwealth v. Tedford, 598 Pa. 639, 960 A.2d 1 (2008) (Brady materiality on post‑conviction review)
- Commonwealth v. Cam Ly, 602 Pa. 268, 980 A.2d 61 (2009) (undisclosed evidence evaluated in context of entire record for materiality)
- Commonwealth v. Morris, 573 Pa. 157, 822 A.2d 684 (2003) (no Brady violation where defense could have uncovered evidence with reasonable diligence)